President Obama is weighing steps he may take by executive order following the failure of Congress to give final approval to legislation addressing the unprecedented influx of unaccompanied children entering the United States at the southwest border.
Before Congress left for its August recess, the House passed H.R. 5230, a bill that would provide $694 million in additional funding for federal agencies dealing with the border crisis – a figure much less that the $3.7 billion requested by the president. The bill, passed Aug. 1 by a 223-189 vote, also would amend the 2008 Trafficking Victims Protection Act to make it easier to deport children from Central America.
A second bill passed by the House, H.R. 5272, would, among other things, limit federal agencies from considering or adjudicating new or previously denied applications under the Deferred Action for Childhood Arrivals program. The program, authorized by the president through an executive order in 2012, allows those who came to the United States as children or young adults to stay in the country temporarily if they meet certain criteria.
The day before the House votes, the Senate failed to garner the 60 votes necessary to proceed to consideration of S. 2648, legislation that would have provided $2.7 billion in additional funding to address the border crisis.
The ABA, which opposes both House bills, conveyed in a July 31 letter that the funding provided in H.R. 5230 is “grossly inadequate to meet many critical needs and the bill contains provisions that would significantly diminish the legal protections provided to these children under current law.”
In the letter, ABA Governmental Affairs Director Thomas M. Susman said the expedited screening and hearing processes in the legislation would place unfair and unrealistic burdens on both the children and the judges.
“Although the bill provides some additional funding for the immigration courts, it is not sufficient to avoid severely increasing the strains on this already overburdened and chronically under-resourced adjudication system,” he wrote.
Susman also pointed out that the bill would provide no additional funding for legal representation, explaining that “due to their ages, lack of education, language and cultural barriers, and the complexity of U.S. immigration law, these vulnerable children face insurmountable obstacles to proving their claims for protection before an immigration judge on their own.”
It is the children most likely to be eligible for some relief under the law, such as victims or trafficking or persecution, who may be least able to articulate their experiences under the bill’s proposed procedure, he added. This would create the likelihood, he continued, that the children with a valid claim to asylum or other legal protection “are the ones most likely to be returned to their home countries to face serious harm or even death.”
As the House was considering the legislation in late July, then ABA President James R. Silkenat and President-elect William C. Hubbard, who became president Aug. 12, visited an emergency shelter for unaccompanied children at Lackland Air Force Base and an immigration court in San Antonio, Texas. The visit by the ABA delegation was organized by the ABA Commission on Immigration, which oversees the South Texas Pro Bono Asylum Representation Project, an program offering pro bono support to the children and teens facing removal.
Following the visit, Silkenat issued a statement calling on the United States to address the situation “without compromising our commitment to protecting the most vulnerable among us, by adhering to the fundamental principles of justice and due process in which this country's legal system is rooted.”
He reiterated the ABA’s support for providing children with legal representation and for adequate funding for immigration courts, and the association’s opposition to changes to the Trafficking Victims Protection and Reauthorization Act of 2008.